Teresia Kagondu Elasto v Mwobe Gathute & Land Registrar Kirinyaga [2017] KEHC 717 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CIVIL CASE NO 122 OF 1995

TERESIA KAGONDU ELASTO........................................PLAINTIFF

VERSUS

MWOBE GATHUTE.................................................1ST DEFENDANT

LAND REGISTRAR KIRINYAGA.........................2ND DEFENDANT

RULING

By a citation dated 20th  June 2017 CHARLES KATHUTI MWOBE in a document headed Republic of Kenya In the High Court of Kenya at NyeriCivil case number 122 of 1995 In the matter of the estate of TERESIA KAGONDU ELASTO(Deceased), cited BERNARD MWAI ELASTO. The citation is supported by the affidavit sworn on 20th June 2017 by the said CHARLES KATHUTI MWOBE.

According to the citation, TERESIA died on 20th August 2011 leaving the citee  as the beneficiary to her estate. That the said Bernard had not taken out letters of administration or  consented to the citers efforts to do so.

The citee opposed the citation through grounds of opposition filed by the firm of AP KARIITHI &CO advocates on 2nd October 2017 and an affidavit sworn by BERNARD MWAI ELASTO  10th of January 2017. The citation is misconceived and bad in law, and ought to be struck out.

I have perused the grounds of opposition, the affidavits and the file and it is clearly very old matter.

Charles Kathuti Mwobe is the son of the original 1st defendant and has appealed against the judgment of this court in this case NyeriCivil Appeal no. 6 of 2016  Charles Kathuti Mwobe vs. Teresia Kagondu Elasto; while Benard  Mwai Elasto is the son of the original  plaintiff, now the respondent in the appeal . The citation is intended to compel Benard to take up the position of his mother in the appeal now pending before the court of appeal.

The the applicant seems to have fallen into the same quagmire of poor legal advice that his father did and which was pointed out by Hon. Justice Omolo in a ruling in that appeal. Otherwise how does one file a citation in a Civil case that has been heard and determined?

This is contrary to the provisions of the Law of Succession Act which exists for the purpose of dealing with the estates of deceased persons, and provides the alw and procedure to be applied.

The applicant clearly intended to apply the provisions of Rule 7(7) of the P&A Rules which provides;

Where a person who is not a person in the order of preference set out in section 66 of the Act seeks a grant of administration intestate he shall before the making of the grant furnish to the court such information as the court may require to enable it to exercise its discretion under that section and shall also satisfy the court that every person having a prior preference to a grant by virtue of that section has—

(a;………………. or

(b) ; ………………or

(c) been issued with a citation calling upon him either to renounce such right or to apply for a grant.

This is the wrong forum. There is no succession cause in place from which a citation can issue and in any event, a petition for letters of administration would have to be lodged in the Probate and Administration registry.

Hence the orders sought are not capable of being issued.

The ‘citation’ is struck out with costs to the respondent.

Dated, delivered and signed this 4th December 2017 at Nyeri

Teresia Matheka

Judge

In the presence of;

Court Assistant; Hariet

Charles Kathuti Mwobe present

Mr. Nderi holding brief for Mr. Kariithi for the Benard Mwai Elasto